GRIMMER v LEE
Docket No. 318046
Michigan Court of Appeals
March 26, 2015
310 MICH APP 95
Submitted January 8, 2015, at Lansing.
GRIMMER v LEE
Docket No. 318046. Submitted January 8, 2015, at Lansing. Decided March 26, 2015, at 9:05 a.m.
Donald Grimmer, as personal representative of the estate of Melody Grimmer, brought a medical malpractice action in the Bay Circuit Court against Daniel T. Lee, M.D.; Stephen J. Mattichak, M.D.; Bay Regional Medical Centеr (BRMC); Bay Regional Heart and Vascular (BRHV); Antonio Vasquez, M.D.; Antonio Vasquez, M.D., PC; and others. According to the complaint, Vasquez, a vascular surgeon, had examined Melody after she underwent a cardiac catheterization, recognized the presence of a hematoma, but dеclined to operate. Plaintiff‘s affidavit of merit charged that Vasquez‘s failure to intercede constituted professional negligence. The complaint also set forth malpractice claims against Mattichak and Lee, both cardiologists, but plaintiff never filed an affidavit of merit attesting to the cardiologists’ negligence. The cardiologist defendants and their principals (BRMC and BRHV) moved for summary disposition on the basis of plaintiff‘s failure to file an affidavit of merit signed by a cardiologist. The motion for summary disposition brought by BRMC and BRHV did not seek summary disposition of plaintiff‘s аdditional claims that they were vicariously liable for Vasquez‘s negligence. Before deciding the summary disposition motion, the court, Joseph K. Sheeran, J., dismissed Vasquez and his professional corporation without prejudice for want of service. At the summary disposition hearing, the attоrney for BRMC and BRHV argued that they could not be held liable for the acts of Vasquez if he was not a party to the case. The court agreed and dismissed the vicarious liability claims with prejudice. Plaintiff appealed.
The Court of Appeals held:
1. In a medical malpractice case based on vicariоus liability, a plaintiff may elect to sue the principal alone, or to sue the principal and the agent together. When a litigant chooses to proceed against an agent and has been defeated, he or she is thereby barred from litigating the same cause of action against the principal. It follows that a determination of the issue in a suit brought against the principal bars an action against the agents. A dismissal with prejudice amounts to an adjudication on the merits and bars a further action based on the same facts. But a dismissal without prejudice is not a dismissal on the merits. In this case, the dismissal of Vasquez without prejudice entered by the circuit court was not an adjudication on the merits. Therefore, it did not bar an action against Vasquez‘s principals. The circuit court erred by affording its order preclusive effect.
2. A circuit court may not grant summary disposition in contravention of a party‘s due process rights. In this case, plaintiff‘s counsel did not appear at the summary disposition hearing after communicating that she had no objection to the specific relief sought in the summary disposition motion that was filed. Plaintiff‘s counsel had no notice that the circuit court intended to consider dismissal of the indirect liability claims raised in relation to Vasquez. By summarily dismissing the defendants who allegedly bore vicarious liability for Vasquez‘s negligent acts, the circuit court failed to afford plaintiff the basic due process rights of notice and an opportunity to be heard.
Reversed and remanded.
NEGLIGENCE — MASTER AND SERVANT — VICARIOUS LIABILITY.
In a medical malpractice case based on vicarious liability, the dismissal without prejudice of the agent from the case because of a failure to achieve service of process does not bar the
McKeen & Associates, PC (by Horia R. Neagos), and Bendure & Thomas (by Mark R. Bendure), for Donald Grimmer.
Giarmarco, Mullins & Hоrton, PC (by Bruce E. Bigler, Jennifer A. Engelhardt, and Christopher J. Ryan), for Bay Regional Medical Center and Bay Regional Heart and Vascular.
Before: SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.
PER CURIAM. Plaintiff, Donald Grimmer, brought a medical malpractice action against a handful of defen-dants including two cardiologists (defendants Daniel T. Lee, M.D., and Stephen J. Mattichak, M.D.) and a vascular surgeon (defendant Antonio Vasquez, M.D.). The cardiology defendants and their principals sought summary disposition
Grimmer‘s complaint alleged that two defendants, Bay Regional Medical Center (BRMC) and Bay Regional Heart and Vascular (BRHV), bore vicarious liability for Dr. Vasquez‘s negligence. Neither defendant filed a motion seeking summary disposition of the vicarious liability claims. Nevertheless, the circuit court dismissed the vicarious liability allegations with prejudice. This was error, and we reverse and remand for further proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
Melody Grimmer died one day after undergoing a cardiac catheterization performed by Dr. Mаttichak. An autopsy concluded that a retroperitoneal hematoma containing 3,000 grams of unclotted blood triggered a fatal cardiopulmonary arrest. According to the complaint, defendant Vasquez had examined Melody after the catheterization, recognized the presence of the hematoma, but declined to operate. The complaint and an accompanying affidavit of merit charge that Dr. Vasquez‘s failure to intercede constitutes professional negligence.
The complaint also sets forth malpractice claims against Dr. Mattichak and another cardiologist, Dr. Lee. However, Grimmer never filed an affidavit of merit attesting to the cardiologists’ negligence. They filed a summary disposition motion on that ground, invoking
After the cardiologists’ summаry disposition motion was filed but before it was heard, the circuit court entered an order dismissing Dr. Vasquez and his professional corporation without prejudice, noting that these two defendants had not been served with process.
During the summary disposition hearing, the circuit court read alоud an e-mail written by Grimmer‘s counsel and provided by the attorney for the cardiologists, BRMC and BRHV. The email stated: “I am writing to advise you that I will not be appearing at [the] motion today. We will not oppose your motion for summary disposition as to the cardiologists but we cannot stipulate.” Defendants’ counsel then reminded the court that Dr. Vasquez and his professional corporation had been dismissed for failure to serve, continuing:
In view of that, your Honor, I have prepared an order that dismisses Dr. Lee, Dr. Mattichak, and [BRMC], with prejudice, because the only claims against [BRMC] is [sic] vicarious for the acts of Dr. Lee and Dr. Mattichak, as well as Dr. Vasquez. If Dr. Vasquez is not a party to this
lawsuit, we can‘t be vicariously liable for him. And, therefore, the order I have prepared would be a permanent dismissal for Dr. Lee, Dr. Mattichak, and [BRMC].
The court entered an order providing in relevant part:
IT IS HEREBY ORDERED that Defendants [BRMC]; [BRHV]; Dr. Daniel Lee and Dr. Stephen Mattichak‘s Motion for Summary Disposition is GRANTED and all claims against Dr. Daniel Lee and Dr. Stephen Mattichak and any claims of vicarious liability against [BRHV] and [BRMC] related to Dr. Daniel Lee, Dr. Stephen Mattichak and Dr. Antonio Vasquez, M.D., are dismissed with prejudice.
Grimmer now appeals as of right from thе portion of this order granting summary disposition of Grimmer‘s vicarious liability claims against BRMC and BRHV premised on Dr. Vasquez‘s negligence.
II. ANALYSIS
The circuit court should not have summarily dismissed the vicarious liability claims stemming from Dr. Vasquez‘s negligence for two reasons. First, none of the defendants filed a motion seeking summаry disposition of the Vasquez-related allegations. Second, had such a motion been filed, it would have been unsuccessful.
Defendants sought summary disposition under
Grimmer‘s counsel had no notice that the circuit court intended to consider the dismissal of the indirect liability claims raised in relation to Dr. Vasquez, and no reason to antiсipate that defense counsel and the court would sua sponte enlarge the pending summary disposition motion to incorporate a legal issue never before mentioned. In summarily dismissing the defendants who allegedly bore vicarious liability for Dr. Vasquez‘s negligent acts, the circuit court bypassed the basic due process requirements of notice and an opportunity to be heard. For this reason, we must reverse the circuit court.
Further, we respectfully reject defense counsel‘s contention, made during oral argument in this Court, that Grimmer should be penalized for his counsel‘s failure to personally attend the motion hearing. Counsel cannot be faulted for deferring a personal appearance after having clearly communicated that she had no objection to the specific relief sought in the motions actually filed. Alternаtively stated, Grimmer‘s attorney was entitled to rely on the good faith of her opposing counsel.
Summary disposition of the vicarious liability claims involving Dr. Vasquez was improper for a second reason as well. Defense counsel‘s declaration that “[i]f Dr. Vasquez is not a party to this lawsuit, we can‘t be vicariously liable for him” is fundamentally incorrect. In a medical malpractice case, “[a] hospital may be 1) directly liable for malpractice, through claims of negligence in supervision of staff physicians as well as selection and retention of medical staff, or 2) vicariously liable for the negligence of its agents.” Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11; 651 NW2d 356 (2002). This Court explained in Nippa v Botsford Gen Hosp (On Remand), 257 Mich App 387, 392; 668 NW2d 628 (2003), that “the law creates a practical identity between a principal and an agent, and, by a legal fiction, the hospital is held to have done what its agents have done.” In Cox and Nippa, the defendant hospitals were charged with the vicarious liability of nurses or physicians who were not named as individual defendants. In Al-Shimmari v Detroit Med Ctr, 477 Mich 280, 294-295; 731 NW2d 29 (2007), the Supreme Court elucidated: “Nothing in the nature of vicarious liability... requires that a judgment be rendered against the negligent agent. Rather, to succeed on a vicarious liability claim, a plaintiff need оnly prove that an agent has acted negligently.” As these cases demonstrate, a plaintiff need not necessarily name the agent as a defendant when suing the principal. Alternatively stated, a plaintiff may elect to sue the principal alone, or to sue the principal and the agent together.
Grimmer sued the two together. His complaint alleges that Dr. Vasquez acted as an agent of BRMC and BRHV. Apparently, the circuit court believed that because it had dismissed Dr. Vasquez from the litigation without prejudice, BRMC and BRHV could not be held legally responsible fоr Dr. Vasquez‘s negligence. In their appellate brief, defendants argue that due to the dismissal, Grimmer‘s direct liability claim against Dr. Vasquez is no longer “viable,” thereby extinguishing defendants’ vicarious liability. When a litigant chooses to proceed against an agent “and has been defeated, he is thereby barred from litigating the same cause of action against the principal. It follows that a determination of the issue in a suit brought against the principal bars an action against the agents.” DePolo v Greig, 338 Mich 703, 709-710; 62 NW2d 441 (1954) (quotation marks and citations omitted). A dismissal with prejudice amounts to an adjudication on the merits and bars a further action based on the same facts. But a dismissal without prejudice is not a dismissal on the merits. Yeo v State Farm Fire & Cas Ins Co, 242 Mich App 483, 484; 618 NW2d 916 (2000). Our Supreme Court has described that the term “without prejudice” signifies “a right or privilege to take further legal proceedings on the same subject, and show that the dismissal is not intended to be res adjudicata of the merits.” McIntyre v McIntyre, 205 Mich 496, 499; 171 NW 393 (1919) (quotation marks and citation omitted). “A dismissal of a suit without prejudice is no decision of the controversy on its merits, and leaves the whole subject of litigation as much open to another suit as if no suit had ever been brought.” Id. (quotation marks and citation omitted).
The Supreme Court‘s opinion in Al-Shimmari erects no barrier to reinstating this case. In that case, thе circuit court granted the physician-agent‘s motion for summary disposition with prejudice.2 The Supreme Court highlighted that “the trial court stated in its order that the dismissal was ‘with prejudice.’ ” Al-Shimmari, 477 Mich at 295. “Therefore,” the Court
continued, “under
Because the remaining defendants may only be vicariously liable on the basis of the imputed negligence of
The dismissal without prejudice of Dr. Vasquez entered by the circuit court was not an adjudication on the merits. Thus, it did not bar an action against Dr. Vasquez‘s principals. The circuit court erred by affording its “without prejudice” dismissal order preclusive effect.
Accordingly, we reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Having prevailed in full, Grimmer may tax costs pursuant to
SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ., concurred.